We like to answer frequently asked questions on our blog, and today we will look at the difference between a conservatorship and a power of attorney.
California Adult Conservatorship
First, we should clear up the matter of guardianship versus conservatorship. Guardians and conservators are court-appointed representatives. In some states, a guardian would make personal decisions for a ward, and a conservator would make financial decisions. In others, a guardian makes all types of decisions for a ward, whether the ward is a child or an adult.
In California, a guardian acts on behalf of a child, and a conservator makes all types of decisions for an adult who has been deemed incapable of handling his or her own affairs.
If you were to become incapacitated in the state of California as an adult, interested parties could petition the state to appoint a conservator to act on your behalf. This individual would serve as your representative, making decisions that you would have otherwise made for yourself.
Durable Power of Attorney
With a power of attorney, you name an agent or attorney-in-fact who is empowered to act on your behalf. If you want to prepare for possible incapacity late in your life, you would want to execute a durable power of attorney. Durable powers of attorney remain effective even if the grantor becomes incapacitated.
What is the difference between a conservatorship and a durable power of attorney? With a durable power of attorney, you are choosing a decision-maker when you are of sound mind. The person who winds up making decisions on your behalf will be someone that you definitely approve of, and nothing will be left to chance.
With a conservatorship, the state will decide on the representative who will manage your affairs.
A durable power of attorney is going to be a better option for a number of different reasons. For one, you may not approve of the conservator that is chosen by the court.
In addition to this, members of your family may not agree with regard to the appropriate course of action. Conflicting testimony could be presented before the court. Acrimony among your loved ones could ensue.
Time is another factor to consider. It can take time for a conservator to be appointed if and when you become unable to make your own decisions. While the matter is stalled in court, important decisions may be left dangling, and this can result in negative consequences.
Incapacity Planning in San Jose: Legal Advice and Guidance
If you would like to discuss incapacity planning in San Jose in detail with a licensed, experienced, and highly qualified estate planning attorney, our firm can help. We offer free consultations to people here in the greater San Jose, California area, and we would be glad to assist you.
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